August 24, 2016

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A Lake County lawyer whose client learned his battery case against Hammond police was dismissed after his daughter looked up court records online has received discipline from the Indiana Supreme Court: a public reprimand.

The blemish on the record of Hammond attorney Eduardo Fontanez Jr. comes as a result of an agreement for discipline justices approved Monday.

Fontanez in April 2013 sued on behalf of client Bennie Crosley, who alleged battery and negligent supervision against the city of Hammond and the police department. The suit claimed Crosley was injured after his arrest when an officer slammed him against a wall. He sought $500,000 in damages.

But District Judge Rudy Lozano of the U.S. Court for the Northern District of Indiana in 2014 dismissed the case with prejudice and sanctioned Fontanez, adopting a magistrate’s order that found he refused to engage in discovery, answer motions to compel or attend hearings on sanctions.

“(T)he history of dilatoriness is profound. In fact, it’s not quite accurate to call it dilatory; rather, it is a complete abandonment,” Northern District Magistrate Judge Paul R. Cherry wrote in April 2014. “Plaintiff has not done anything in this case since August 2013, nearly eight months ago. This abandonment makes it impossible for the case to go forward and weighs strongly in favor of dismissal with prejudice.

“Plaintiff’s drastic failures justify use of a drastic sanction,” the magistrate wrote. “There is nothing in the record to suggest that lesser sanctions would spur Plaintiff into compliance. If the case cannot be moved forward, it needs to end.”

Justices found Fontanez failed to serve initial disclosures, respond to discovery, respond to an order to compel discovery, pay attorney fees awarded to defendants, respond to a motion for sanctions or appear at a hearing for sanctions. The actions constitute violations of Indiana Rules of Professional Conduct 1.1, failing to provide competent representation; 1.3, failure to act with reasonable diligence and promptness; and 1.4(a), failure to keep a client reasonably informed.

Chief Justice Loretta Rush wrote for the court that adopted the conditional agreement for discipline, a public reprimand. “The parties cite the following facts in mitigation: (1) Respondent has no prior discipline; (2) Respondent has been cooperative with the (Disciplinary) Commission and has been remorseful; (3) during the period of misconduct, Respondent was in the midst of a prolonged custody dispute; (4) Respondent has reached out to Client and encouraged him to consult with an attorney regarding a malpractice action against Respondent, and is willing to pay any malpractice judgment that might be entered; and (5) Respondent has attended CLE programs and consulted with other practitioners in an effort to improve his practice management and skills.”

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Dave Stafford joined the staff of the Indiana Lawyer as a reporter in May 2012 and was named editor in October 2017. An award-winning print journalist for more than 30 years, Stafford has worked as a reporter and editor at newspapers including the Herald Bulletin in Anderson, Indiana, the News-Journal in Daytona Beach, Florida, and the Times-Dispatch in Richmond, Virginia. He and his wife, Denise, live in their hometown, Indianapolis.